39 F.

3d 1193
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

UNITED STATES of America, Plaintiff-Appellee,

v.
Ferlin PLATERO, Defendant-Appellant.
No. 93-2317.

United States Court of Appeals, Tenth Circuit.

Nov. 16, 1994.
ORDER AND JUDGMENT1
1

Before MOORE and BARRETT, Circuit Judges, and ROGERS, District

Judge.2

There are two separate criminal incidents involved in this appeal. In the first,
defendant was convicted of raping Susie Francis. Prior to trial, defendant
sought to impeach Francis by showing she had falsely accused defendant of
raping her to protect an extramarital relationship she was having with Vernon
Laughlin.

At an evidentiary hearing on defendant's motion under Fed.R.Evid. 412(b)(1) to

determine the admissibility of evidence of Francis' past sexual behavior, both
Francis and Laughlin testified they were currently living together but denied
any romantic alliance at the time of the rape. Defendant presented the
testimony of Laughlin's former girlfriend who stated she knew he had been
engaged in an affair with Francis at the time of the alleged rape, and she
terminated her own five-year cohabitation with Laughlin because of his
involvement with Francis. The district court denied the motion to use the
testimony after finding it had no relevance.

Recognizing it was defendant's theory Francis had to explain to Laughlin where

she had been during her encounter with defendant, the court nonetheless stated:

I5 have great difficulty with a relevancy link by the witness Laughlin, whether or not
he had a romantic relationship. He saw her leave with the defendant. He knew who
she had been with and saw her return. She didn't have to explain where she had
been.... I do not conclude that there is any significant relevance here.
6

The court also concluded the testimony would have been more prejudicial to
the victim than relevant to the issues of the case.

Defendant presents this issue as a denial of his Sixth Amendment

confrontational right. We review de novo.

Fed.R.Evid. 412 permits evidence of a victim's past sexual behavior to

determine "whether the alleged victim consented to the sexual behavior with
respect to which such offense is alleged." Rule 412(b)(2)(B). Defendant's case
is mainly founded upon Olden v. Kentucky, 488 U.S. 227 (1988), which the
district court found distinguishable. Olden bears some remarkably similar
circumstances to this case, but the critical fact has been left unresolved.

In Olden, there was a proven factual predicate for a presumption the victim
would have a reason to falsify her testimony. First, there was evidence that the
victim had an existing relationship with a man. Second, that man did not know
the alleged victim had been with the defendant and she was unable to explain
why the man saw her alight from defendant's car. It is not, therefore, an
inconceivable stretch to presume she would lie to her lover and claim to have
been raped. Moreover, there was corroborative evidence that the sex between
her and the defendant was consensual.

10

In this case, the foundation upon which the Olden paradigm is built, while
evident in the testimony, has not been resolved on the record. The application
of the Olden principle is dependant upon the existence of a relationship
between Francis and Laughlin. There was testimony concerning the fact of the
relationship, but it was rebutted. Unfortunately, while the district court
appeared to have disbelieved Laughlin's former girlfriend, the court did not
resolve the discrepancy in the testimony.

11

At this juncture, the proper outcome hangs in the balance. If there had been an
existing relationship between Francis and Laughlin at the time of the alleged
crime, defendant should have been allowed to cross-examine Francis, as
required by Olden. Obviously, if there was no relationship, the entire logic
behind defendant's quest evaporates.

12

The second issue arises out of a subsequent prosecution and conviction of rape.
After severing counts involving the rape of a second woman, Genevieve
Stauffer, the district court allowed the government to introduce evidence
defendant's coworker, Victor Martinez, told their boss, Mr. Mackel, defendant
had raped "another woman."

13

Prior to trial, in what appears from the record to be an in limine inquiry brought
on by the government, the prosecutor sought the court's direction regarding this
testimony. Telling the court he was "reluctant" to advise a witness "not to say
certain things," the prosecutor asked for the court's "guidance."

14

In sum, the government's concern was that Mr. Mackel was prepared to state
the morning after the alleged rape Mr. Martinez told his boss, "He [defendant]
raped another woman." The government's only concern was "how the court
wants to handle that."

15

After seeking the defense counsel's reaction, which was prolix and vague, the
court ruled the statement admissible because it was relevant. The court did not
expand upon that conclusion.

16

At trial, Mr. Mackel was asked what Mr. Martinez said, and he responded:

17 told me, "He [defendant] did the same thing." And I kept asking, "What do you
He
mean by he did the same thing'?" And after about three or four times of asking him
that, he replied, "He raped a woman."
18

Although in the in limine conference defense counsel had said this testimony
was "another way of bringing in prior bad act evidence," and that "I still object
to any of this coming in," she did not object when the evidence was actually
presented. Indeed, even the argument she made at the in limine conference was
unspecific about the grounds for her objection. Her lack of specificity is
particularly troublesome in the light of a concession she made that the evidence
could come in if only the government would agree to instruct Mr. Mackel "that
all he can say about it is that he had told Mr. Martinez that he had heard Mr.
Platero was suspected in another rape."

19

Defendant now contends the district court erred in the admission of this
statement because it violated the right he had secured by having the two
charges severed. He also contends the district court misapplied Fed.R.Evid.
404(b).

20

Although not raised by the government, defendant's failure to make a specific

objection to the admissibility of the testimony keeps us from addressing this
issue. "Error may not be predicated upon a ruling which admits ... evidence
unless a substantial right of the party is affected, and ... a timely objection ...
appears of record, stating the specific ground of objection [unless] the specific
ground [is] apparent from the context." Fed.R.Evid. 103(a)(1). "In order to
preserve alleged error for appeal, a party must make a timely and proper
objection." United States v. Mendoza-Salgado, 964 F.2d 993, 1008 (10th
Cir.1992) (citations omitted). "On appeal, the specific ground for reversal on an
evidentiary ruling must mirror the objection raised at trial." Id. Moreover, a
party objecting to the admissibility of evidence may not rely upon a ruling
made in limine but must raise a specific objection when the testimony is
presented to preserve the issue for appeal. United States v. Sides, 944 F.2d
1554, 1559-60 (10th Cir.), cert. denied, 112 S.Ct. 604 (1991).

21

There is simply no question that defendant's error regarding the admissibility of

Mr. Mackel's testimony has not been properly preserved. Not only was there no
objection during trial (Tr. Vol. VII, p. 11), but also to the extent an objection
was raised in limine, it was wholly lacking in specificity.

22

We have, nonetheless, considered the testimony in light of the remaining

evidence admitted against the defendant. We conclude Mr. Mackel's statement
of his conversation with Mr. Martinez pales to insignificance when compared
to the other evidence of defendant's guilt. Moreover, he did not ultimately
testify in the manner counsel supposed prior to trial. One has to indulge in some
hyperbole to actually give the statement the harmful effect defendant suggests.
Taking all these facts together, we conclude, any error in the district court's
ruling is harmless.

23

AFFIRMED IN PART and REMANDED IN PART for a determination of the

factual issue addressed in this order and judgment. Following that
determination, the district court shall proceed with a disposition appropriate to
its finding and the thoughts expressed here.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470

The Honorable Richard D. Rogers, Senior Judge for the United States District
Court for the District of Kansas, sitting by designation